Is Hawaii Doing Enough To Oversee Commercial Tour Operators?

Jonathan Owens, a 58-year-old father of two from Louisville, Kentucky, booked a tour with the nonprofit Pacific Whale Foundation last summer to snorkel at Molokini Crater — a small, crescent-shaped island off the south coast of Maui.

During the Aug. 16 trip, he was found unconscious in the water near Molokini and pulled back aboard the Odyssey, the foundation’s 65-foot, double-deck catamaran.

The boat returned to Maalaea Harbor, some 40 minutes away, where medics were waiting. Life-saving efforts were unsuccessful and Owens died.

Snorkel tours to Molokini Crater are popular but the site is nearly an hour from the nearest medical help on Maui.

Flickr: Forest and Kim Starr

Five days later, Jung Aee Kim, a 73-year-old woman from Grand Prairie, Texas, died after snorkeling off of Molokini during a tour with the same organization to the same place on the same boat.

In fact, four people died on Pacific Whale Foundation tours in a 14-month period from June 2014 to August 2015.

Looking back even further, no other tour boat company in Hawaii has been associated with more than one tourist death in the past four years and the vast majority have had no deaths during their tours, a Civil Beat review of visitor deaths shows.

Be Prepared

These websites contain important information that can keep you safe.

• Hawaii Beach Safety: Updates every 15 minutes with ocean conditions at beaches around the state, current surf and wind reports and the latest hazards and warnings.

• Kauai Explorer: Good information about beaches and trails on the Garden Isle including safety tips.

It’s unclear why Pacific Whale Foundation has had more deaths than other companies. The organization did not respond to repeated requests for comment for this story.

Some suspect the distance to Molokini plays a role since it takes longer to return to shore if an accident happens out at sea, and medical experts say a key to saving drowning victims is getting them medical help quickly. Wrongful-death lawsuits filed against the nonprofit have blamed negligent employees, but those cases have either been dismissed or settled with undisclosed terms.

But what is clear is that government regulations have not kept pace with the commercial tour industry.

And ocean safety advocates and others question whether enough is being done to protect the customers who are entrusting their lives to boat captains, surf instructors, snorkel tour guides, kayak rental companies and others. Hawaii sees about 8 million tourists a year, and tens of thousands sign up for commercial tours.

Yet until September 2014, operators didn’t need a state commercial permit to conduct tours in state waters so long as they did so out of a private boat launch or marina.

The Hawaii Department of Land and Natural Resources only regulated commercial activity on state ocean waters if it originated from a state harbor or launching facility under the jurisdiction of the Division of Boating and Ocean Recreation, or if it involved thrill craft, parasailing, water sledding or high-speed boating in ocean recreation management areas, such as Waikiki and Maunalua Bay. The areas are designated by specific boundaries and include restricted zones.

But that changed in 2014 when the state land board adopted new rules that have enabled the DLNR to track and regulate commercial operators on state ocean waters regardless of where they launch from.

“This new permitting scheme serves the important dual purpose of monitoring commercial activity levels on state waters as well as protecting public safety by ensuring that operators are carrying sufficient liability insurance and adhering to State standards,” the agency explains on its website.

Still, DLNR can’t say how many permits there are, how many citations have been issued or permits revoked and how the permit information is being used to inform management decisions about activities happening in state waters. DLNR spokeswoman Deborah Ward said the department needed more time to provide that information, which was requested more than two weeks ago.

But in at least one instance, the state has revoked a tour company’s permit. The Board of Land and Natural Resources pulled the permit for Hawaii Pack and Paddle in 2014 after 15-year-old Tyler Madoff died on a kayaking trip to the Big Island.

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Tour operators pay $200 per month or 3 percent of gross receipts, whichever is greater, for the permit. The operator has to have insurance, a business license and inspection certificate.

But there is no state requirement that ensures companies hire qualified workers. The state leaves it to the tour operators to make sure the staff they hire is competent.

A snorkel tour boat cruises on the south shore of Kauai.

Nathan Eagle/Civil Beat

In an April 25, 2014, memo proposing the new rules, state boating administrator Ed Underwood said his division “does not possess the expertise to determine whether an individual is adequately trained to engage in water sports instruction nor should the department assume that liability.”

Ocean safety experts say that means consumers must put their trust in the operators.

“Many of the tour operators have embraced safety and they understand that it’s good for their business,” said Jim Howe, who recently retired as the head of operations for Honolulu’s Ocean Safety Division.

“But we do have tour operators that operate more on the margin and that’s not part of their business practice,” he said. “The challenge is as a consumer, how the heck do you know the difference? There’s really no mechanism for that.”

And while the state now has a permitting and tracking system in place, other efforts to tighten restrictions on tour operators have had mixed success.

After concerns mounted over tour operators essentially taking over public beaches in Kailua, for instance, Honolulu limited commercial activity there. Kayak companies were deemed particularly problematic because they rent their watercraft to virtually anyone who wants to paddle, including out to the Mokulua Islands a mile offshore — the site of numerous rescues.

Tour operators have skirted efforts to clamp down on their ability to drop off passengers at Hanauma Bay, the state’s most popular snorkeling destination. The park’s management plan banned large tour buses from just dropping off and picking up passengers, but smaller vans were simply registered as taxis to get around the rule.

Ike’s Hanauma Bay Tours is one of many companies that’s licensed as a taxi service but promotes itself as a tour company.

Screenshot: Ike's Hanauma Bay Tours website

“Unfortunately, there are a lot of operators that sell themselves as tour operators in their publicity but they only are registered as taxi companies,” said Alan Hong, the retired manager of Hanauma Bay Nature Preserve and a former tour operator himself. “They drop off up to 25 to 30 percent of the visitors to Hanauma Bay at any given time.”

Operators with taxi licenses are allowed to drop people off, he said, whereas operators with commercial tour permits have more rules to follow, such as being in the water with their customers to help ensure their safety.

“These operators that are operating under a taxi license just hand their people the equipment, give them a quick orientation while they’re driving their van or taxi out there, and say, ‘If you’re a poor swimmer, just stay in front of the lifeguard tower,'” Hong said. “That’s essentially how it is.”

The nonprofit was founded in 1980 to save whales from extinction, and it does research in Australia and Ecuador as well as Hawaii, according to its website. The company offers a variety of snorkel tours and dinner cruises in addition to educational programs and conservation work, and says it has hosted more than 3.5 million people from around the world on tours.

Still, the organization has been the subject of controversy, including lawsuits over the past 20 years.

The Pacific Whale Foundation store at Maalaea Harbor.

Marina Riker/Civil Beat

The National Oceanic and Atmospheric Association sued Pacific Whale Foundation for falsifying and withholding research in the 1990s, as well as approaching whales in early 1998 without a proper permit, according to news reports. The nonprofit fired a researcher who was supposedly to blame and settled the lawsuit.

A lawsuit filed against Pacific Whale Foundation in 2005 blames a near drowning on the nonprofit’s negligence.

According to the lawsuit, Melvin Hulme and his family booked a tour with the foundation to snorkel at Molokini on Oct. 13, 2003. But within minutes of going in the water, Hulme nearly drowned.

His daughter, Margaret McClanahan, watched as the crew on the Pacific Whale Foundation pulled her unconscious father on board the vessel. Other guests on the tour were able to provide emergency medical treatment and restart his heart and breathing.

Hulme had no history of heart problems before going on the snorkeling trip. But within three weeks of the incident in Maui’s tropical waters, the California resident suffered a massive stroke and died.

A snorkeler smiles on a Pacific Whale Foundation tour to Molokini Crater.

Flickr: Ted Murphy

The lawsuit alleges that his death was partly caused by his near-drowning experience on the Molokini trip. It blames Pacific Whale Foundation for failing to properly train its employees, who didn’t adequately supervise Hulme in the water. It was a windy day and the seas were rough, and the staff on the vessel failed to warn Hulme of those conditions, according to the lawsuit.

The case was dismissed in 2006 with undisclosed settlement terms. Pacific Whale Foundation denied all the allegations, and noted in the lawsuit that the risk of injury associated with snorkeling in the open ocean was disclosed or obvious to the plaintiffs who voluntarily participated in the activity.

The nonprofit remains among the most popular tour companies in Hawaii, receiving a “certificate of excellence” from TripAdvisor, which has become the go-to place for many travelers to read about and review tour outfits, hotels and more. The foundation has consistently earned good reviews on the site, and the nonprofit also has a positive reputation among many in the community for its conservation work.

And while online sites like TripAdvisor or Yelp can include customer reviews pointing to problems, Howe, the former Honolulu ocean safety director, thinks there needs to be something akin to a “good housekeeping seal of approval,” some sort of official rating or advisory system that lets people check on the safety record of an operator.